House of Eratosthenes

It’s a good thing I never said this point was entirely lacking in merit, for it certainly is not so lacking. Searching around for an editorial I saw last week in Sacramento Bee, I found it under Paul Greenberg’s name and Mr. Greenberg states a powerful case.

Nothing so well illustrates the essential asymmetry of this country’s worldwide struggle against terrorism than last week’s 5-to-4 opinion out of the U.S. Supreme Court. The enemy is fighting a war; we are litigating a plea.

Throughout the sleepy Nineties, we dealt with two – two! – earlier and incomplete attacks on the World Trade Center not as the barbaric acts of war they were, but as isolated matters for the criminal justice system to deal with when and if it could. While we slept, the enemy plotted. We paid the bloody price for our obtuseness – in thousands of innocent lives – on September 11, 2001.

Now we’re proceeding with great deliberation down the same blind alley.

How to describe this latest opinion from the high court? It’s not easy to get a handle on this decision for, against or maybe just vaguely about the exercise (or paralysis) of the president’s wartime powers. Here is how His Honor Anthony M. Kennedy – heir to the equally vacuous Sandra Day O’Connor’s swing vote on the high court – “explained” what his majority opinion means, or rather doesn’t mean: “Our opinion does not undermine the executive’s powers as commander in chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the judicial branch.”

This whole issue shouldn’t be an issue, of course. Supreme Court Justices are sworn in with an oath to defend the Constitution. Not to twist it around to make people happy, who in turn don’t even live in this country. They’re supposed to read the Constitution, look at some lesser law, and say “I don’t see any conflict here” or “yeah, that’s messed up, you’re not supposed to do that and it says so right here.”

What Kennedy is doing is ratcheting up the standard of constitutionality in such a way that it has little to nothing to do with the actual Constitution. He’s an authority doing exactly what authorities aren’t supposed to do when they wield authority: Try to use it to make himself popular.

…this is the third time in four years that the high court has left the question of how or if to try enemy combatants up in the cloudy air. What are the other branches of government, or even the lower courts, let alone our troops in the field, now to do with these detainees and future ones? The weightless burden of the court’s confused and confusing guidance on this subject might be summed up as: To be determined.

Each time the Supreme Court has ruled against this system of trying enemy combatants, lawful or unlawful, Congress and the executive – at the court’s explicit behest – have moved to meet its objections, only to be told once again that the tribunals still don’t pass constitutional muster.

In matters of civil and criminal law, you don’t want anything to happen unless all the tumblers are lined up. Outside of the military, government has a way of doing things like that naturally: Everyone has to agree something’s a go, but the lowliest mail clerk has the authority to stop it. Great way to prosecute a case. Lousy way to fight a war.

Greenberg closes by echoing John’s point, almost word-for-word:

The one thing that this latest example of law at its least vigilant does make clear is the importance of this year’s presidential election. Sen. John McCain, who knows something about war and being a prisoner thereof, says he would appoint judges who are committed to judicial restraint; he’s criticized this decision. Sen. Barack Obama has praised it. However confused and confusing this latest decision, it does clarify the decision facing the American voter this November.

It certainly does. What it actually means, I’ll leave to each reader to decide for him- or herself.

I know McCain isn’t speaking from the heart, though; I know this beyond the shadow of any doubt. His schtick is that he understands Guantanamo has to be closed down, that we need to recapture some of our global popularity by gelding ourselves in our treatment of these terrorists. He also clings to the tired old song that if we continue with our harsh interrogation techniques, it just puts the men and women serving on our behalf in danger, in case they are captured by the enemy.

The facts don’t square with this sales pitch. When John McCain was captured by the North ~~Koreans~~ Vietnamese, the United States was a signing party to the Geneva Conventions. That’s just a fact. The VC brutalized him at the Hanoi Hilton, and that, too, is an inconvenient fact. No getting around it.

So if anything, McCain is in a great position to know — beyond any doubt whatsoever — that a nation’s determination to behave in a “civilized” manner either by treaty or by deed, does nothing, zilch, zip, zero, nada, bubkes, as far as ensuring that nation’s troops will be subjected to kinder treatment by an enemy once they are captured.

He knows this. He knows it personally. And he’s playing up propaganda that is meaningful only to those who are too ignorant of the facts to understand what’s really going on here.

So do I think McCain’s rhetoric is right on the money about these nominees to the Supreme Court? Yeah, pretty much. Do I think a President McCain is likely to nominate better judges to the Supreme Court than a President Obama? Mmmm…maybe. There’s the slimmest of chances. Would I put a lot of money on it? No. I’d put very, very little. McCain is the very picture of a Republican nominee for President who’ll screw the conservatives over that way once he gets in.

Do I admire him for his service? Hell yes. Do I admire him for his character? Not one bit. I think he has serious issues in that department. Do I think he’s better than a democrat? Uh…maybe I would, if it weren’t for the history of Bush Pere. Or Nixon. I have my reasons to be jaded.

Am I optimistic about how things are going to turn out this year, if only the Republicans unite on this candidate, and thus reassure the candidate that we’re all with him, and consider the job of team-building to be behind him?

Hell no.

He’s the presumptive nominee. He doesn’t have the track record of sticking with principled positions on things…which means both sides will get a benefit out of him if they lean on him.

And those “moderates” are going to lean on him 24×7 all the way to election day.

Those who understand the wisdom of what Greenberg has had to say, should lean on him too. Which means, necessarily, that he can’t count on us. Not until he’s made some commitments that he hasn’t even bothered to make just yet.

Update: As Buck points out, I got my countries mixed up. It’s tough to keep straight in one’s mind all those wars the democrats started.

To be fair, there is another reason to be against torturing prisoners — it’s not just “hey, our guy’s’ll be treated better if we promise everyone we won’t do it”.

And that reason is … that it ain’t right, in general, to do it. I think McCain acutally has a pretty healthy attitude about this.

This from a man (that would be me) who says sometimes — you gotta. I think McCain knows sometimes you gotta. I think if one of those times came up, McCain would say “do it”, regardless of what he’s said on the campaign trail.

And actually, I’d like to think Obama would as well, despite his campaign rhetoric. I believe McCain would be better about it, though. More decisive. More effective.

The problem the Bush administration has “created” for itself is that it is telling the truth about the whole situation. It is saying, “hell no, we won’t rule it out! We don’t do it as a matter of course, but we’ll do it when we gotta.” They did it a very few times. Two, that I know of, with Gitmo POW’s. The one who was “tortured” the longest (waterboarded) was apparently “tortured” for a whole two minutes, maybe two minutes and thirty seconds.

I’d be willing to bet that no president faced with similar decsions ever said, “nope, sorry, we can’t”. The difference is, a solid, noisy, hard-core minority of about 20% of the American public with a severely lopsided representation in the media has had it in for this president since Al Gore lost in 2000. They’ve been throwing a temper tantrum ever since — interpreting every action Bush has taken in the worst imaginable light and squealing it at the top of their collective lungs, ad naseum for 7 years now. Combine that with the blunt honesty that the Texan-style administration had in the face of that criticism, “yeah, we waterboarded a few of these guys to get info. Why should that surprise you?”, and you have what you see here today.

McCain isn’t excactly the hanging basket I’d’ve chosen to hang on my porch. But I can expect a few good things out of McCain — probably a few bad things as well. But I expect nothing good out of Mr. Obama. Nothing. All bad, all the time. His car pulls so hard to the left he’ll take us straight into the ditch, pronto, especially if the Dems win larger majorities.
- philmon | 06/23/2008 @ 13:51
Well yeah, that’s a good point. I think it’s disingenuous to get a national policy going on the premise that it’s “immoral,” but a personal credo is an entirely different thing. I can respect that even if I don’t agree with it.

I hope your right. I wish we made that the issue. It would be so much more honest: When do we start waterboarding? If Obama’s answer is “never, ever, no matter what” then make him say that.

There are bound to be some situations, as you point out, where it becomes moral even when in more ordinary circumstances it would not be. My position is — if a candidate remains opposed to it at that point (thereby condemning thousands of innocents to death), and therefore it isn’t about morality, and while it makes us more popular with other countries but it doesn’t prevent our own guys from getting tortured when they’re captured…then what…is…the…freakin’…point. At this point, we’ve run out of reasons. Strap ‘im down and pour away.
- mkfreeberg | 06/23/2008 @ 13:59
And it’s worth noting that Bush also nominated Miers before Alito. However, he responded to conservatives who protested by appointing Alito. That’s a key difference. Politicians, all politicians, will sometimes make bad decisions. It is up to the people to hold them accountable and pressure them into making the right decision. And that’s what I meant when I said that it is Republicans who have gotten smarter. McCain knows this; that’s why he put Ted Olson and Fred! on his judge vetting team. Does that make any difference? Even if you don’t trust the Maverick (and I don’t), don’t you have some confidence in them?

May I recommend Supreme Conflict: http://www.amazon.com/Supreme-Conflict-Inside-Struggle-Control/dp/0143113046/
- JohnJ | 06/23/2008 @ 14:07
As to torture, looking at it in that light makes it similar to the nuclear question. The question isn’t “Is it wrong to nuke?”, the question is “Who makes the call when to nuke?” And that person is the President.
- JohnJ | 06/23/2008 @ 14:10
There are bound to be some situations, as you point out, where it becomes moral even when in more ordinary circumstances it would not be.

Morgan! Are you signing on to the principle of moral relativism? Who’d a thunk it? 😉

I’ve been going on about McCain and the Supremes for quite some time now. You must not have been listening…

And… being ever the pedant… McCain was captured by the North Vietnamese, not the Norks. You might wanna fix that.
- Buck | 06/23/2008 @ 14:54

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Helping to Highlight JohnJ’s PointMonday, June 23rd, 2008

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Monday, June 23rd, 2008